Kew Cottages developers claim Heritage Council of Victoria panel ‘lacked planning law expertise’ | HeraldSun

Brian Walsh

Kew Cottages Coalition president Brian Walsh said if the Heritage Council panel considering the cottages’ redevelopment was thrown out it would have set a “terrible precedent”. Picture: Susan Windmiller

http://www.heraldsun.com.au/leader/inner-east/kew-cottages-developers-claim-heritage-council-of-victoria-panel-lacked-planning-law-expertise/news-story/89aa9dbb9cb200374a0237921dfd37e6

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Kew Cottages project decision delayed | HeraldSun

Brian Walsh, head of Kew Cottages Coalition. Picture: Susan Windmiller.

THE fate of a controversial building proposed for the former Kew Cottages site will remain unknown for a while longer after the developer applied to change the make-up of a Heritage Council of Victoria panel…  More..

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STOP PRESS: Kew Public Meeting: Wed 24 Feb 2016 – Important Information Update

KCC 2016 Feb Newsletter

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Kew Cottages Heritage Council Hearing Postponed

Monday 15th February 2016

Walker Corporation/Kew Development Corporation
have submitted an Application
for the Heritage Council to be Reconstituted.

 

Public Hearing Postponed
The Heritage Council has, therefore, determined to adjourn the final day of the hearing scheduled for today  Monday 15 February 2016, to allow time for consideration of the application, and any material submitted by parties in relation to it. (More… )

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Kew Cottages Coalition Heritage Submission: The Constant Gardner – Abraham Morrison

 

 Links: Including Print and Visual Materials.

  1. KCC  Heritage Submission: The Constant Gardner_Feb 2016_pp18 (PDF File)

2. Melbourne Leader,   Gardens of  The Kew Asylum,  1881-1885 (PDF File)

3. Impact of  The Proposed Development – Visual Materials:

a) Kristian Grayson, Balloon-Assisted Building Visualisation (PDF File)

b) KCC,  Drone-Assisted Main Drive Kew Visualisation  (YouTube Video 4:36m)

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Heritage Council: Kew Cottages Coalition Submission in Reply (Email 1 of 2)

To: Rhonda McLaren, Heritage Council Victoria
Re: Permit appeal Kew Cottages (H2073)
From: Brian Walsh, President, Kew Cottages Coalition.
Date: 30 Nov 2015

Dear Ms. McLaren,

I enclose the Kew Cottages Coalition reply to the Permit Appellant.

Yours sincerely,

Brian Walsh
President
Kew Cottages Coalition

M. 0414 979 300
W. www.kew.org.au
t_mini-a.pngtwitter.com/kewcottages

enc:

KEW COTTAGES COALITION SUBMISSION IN REPLY

1. Introduction.

We understand that:

  • Major Projects Victoria (MPV) own the Kew Cottages Government Heritage site that is the subject of the current appeal, and that as owner MPV is ultimately responsible for all works on the site to be undertaken in accordance with the Heritage Act;
  • MPV have contracted Walker Corporation to develop the site on their behalf, and lodge this appeal.

According to the Appellant’s submission, MPV “remains supportive of the project”. [PP01(3)]

At the outset, therefore, we wish to make clear that while we have the greatest respect for the Appellant, their sub-contractors, counsel, and expert witnesses, in our submission MPV’s support for this project is not in the accordance with Government Heritage policy, is not in the public interest, and can only serve to bring the management of Victorian Government Heritage into disrepute.

2. Potential Breaches of S74A and S160.

Indeed, as detailed in our earlier submission, on the basis of the documentation made available to this appeal, and our own inquiries, the owner of the site appears to have potentially breached both S74A and S160 of the Act by

a) Non compliance with Permit 9639 by undertaking the Stage 1 and Stage 2 works, without first obtaining the Executive Director’s written approval for the Comrpehensive Landscape Management Plan and drawings as required by Condition 9 of Permit P9639;

b) Non Compliance with Permit 9639 by demolishing Heritage Building B2 Cottage (House Hostel), B4 Cottage (Unit 11) , and B5 Female Hospital Block (Unit 9) in a manner other than that prescribed in Permit P9639, i.e.: without satisfactory completion of the owner’s undertaking provided in their P9639 Application by Ms. Helen Gardner. (HLCD Pty Ltd, May 2005,HIS S.6.3) including:

c) Failing to obtain the Executive Director of Heritage Victoria’s written approval for drawings to show any works required to the land between Main Drive and Oak Walk (i.e.: Stage 8, the subject site of the current appeal). (P9639. HCLD Pty Ltd HIS 6.3 see Extract below)

Conditions specified in S.6.3 include:

Detailed drawings to show any works required to the road or pathway alignment of F4 Main Drive, F5 Boundary Drive, F6 Lower Drive and F7 Oak Walk or their vicinity, including measures to be taken to lessen the impact on significant landscape features, including avenues, trees, concrete lamp posts and lights, and glazed spoon drainage tiles on Oak Walk. [Permit Application P9639 (HIS6.3)

 

d) Allowing the remaining heritage buildings to fall into disrepair; and
c) Allowing the Appellant to ‘squat’  on the subject site of this appeal, to the extent that the conservation of the Main Drive and Oak Walk Avenues  has been threatened by this Permit Application and Appeal.
We say this is a fundamental issue, and respectfully request that it  be dealt with first as a matter of urgency, because if we are correct, then this whole appeal is based on a false assumption, namely that a breach of the Act has not already taken place.
If we are wrong regarding the above matters. then we submit as follows:
 

3. Chronology [5]

It appears that the Appellant has failed to provide an accurate and complete Heritage Permit Inventory. For example no Permits are listed supporting the commencement of the re-development in 2006. This is significant because it goes to the question as to whether the owner breached Condition 9 of P9639 by commencing the re-development in mid 2006.

Indeed, we note that the owner and Appellant were actually prosecuted by Boroondara Council in 2006 for effectively “jumping the gun” and commencing building works in Stage 1 without first obtaining the necessary permits. (VCAT 2006)

We request, therefore, that an adequate and comprehensive chronology be provided listing all relevant events regarding the commencement of re-development on the site, including applications, permits, and approvals that were in force at the time redevelopment commenced in Stage 1 and/or elsewhere on the site, plus an explanation as to:

  1. What permit conditions had not been satisfied, and why ? (Ref P9639 Condition 9)
  2. What required permits had not actually been obtained when the re-development commenced and why ? (Ref VCAT 2006)
  3. What were the grounds for the subsequent sacking of the KDC Project Manager, Kevin Hunt, by Walker Corporation ?
  4. On whose authority was the redevelopment commenced ?
  5. Did redevelopment commence before the Appellant signed the KRS Redevelopment Contract with the Victorian Government on 27 October 2006 ?
  6. If so, why ? And who was responsible for ensuring all Heritage Permit Conditions were properly complied with prior to 27 October 2006 ?

Reason. It appears the re-development commenced during a time of great confusion before the Walker KRS Contract was even signed, and before significant permit conditions had been properly complied with.

As a consequence the comprehensive Landscape Management Plan for the land between Main Drive and Oak Walk that the owner had undertaken to prepare and submit for the approval of the Executive Director of Heritage Victoria before re-development commenced in 2006 was not submitted and, therefore, not approved.

4. The Application

The Appellant makes reference [para 18] to Boroondara Council and the recent VCAT decision and “a large parcel of privately owned land to the south of the Kew Cottages site, 48 Wills Street.

However, we understand from Boroondara Council that most of the Appellants assertions regarding 48 Wills Street are essentially wrong.

We respectfully request, therefore, that any errors or omissions be corrected by the Appellant in concert with Boroondara Council, and that parties be advised accordingly.

5. Status of the Site Concept Plan.

The Appellant makes reference [paras 20-29] to the expiry of Permit 9639 and asserts:

….that the Site Concept Plan should not be given any more relevance than simply an

indication as part of a set of endorsed plans of an intended form of development more than

10 years ago…. [Para 25]

We say, however, that compliance and NOT currency is the issue that needs to be addressed.

We submit that as the owner appears to have significantly failed to comply with the terms and conditions of Permit 9639 at the outset, i.e.: before commencing re-development, significant weight should be given to that potential breach of the act.

Similarly, as Government Heritage Assets are involved, the Heritage Council should have regard to Government Heritage Management Policy. (HC46, 3,4,5)

We recommend that the Heritage Council seek an explanation for the Government’s failure to comply with Permit Condition 9 (P9639) from the responsible Government parties, including DHS, MPV, and the Secretary of the Department of Economic Development, before making a ruling on this matter.

Pending a decision on the latter we say:

That if the owner had acted responsibly and properly complied with Condition 9 of Permit P9639 then:

A comprehensive Landscape Management Plan, that included the island site between Main Drive and Oak Walk would have been produced by the owner and submitted for approval by the Executive Director, Heritage Victoria, before Stage 1 works commenced in 2006;

For approval the Plan was required to incorporate:

  • All the significant trees between Main Drive and Oak Walk, including Tree 160 (subsequently removed without a permit by the owner)
  • The hard landscape elements of F4 main Drive and F7 oak Walk, including the gutters and lampposts
  • All other retained trees
  • A proposal for removing the former Administration Building, and proposals for
  • Re-instatement Avenue planting in the gap left by the latter building
  • Any fencing treatments fronting F4 Main Drive, and F7 Oak Walk and the Public Open space areas
  • Full details of the proposed landscape treatment of the public open spaces, including the landscape treatment of the heritage core area, and proposed play equipment, furniture, lighting…

Reason. To ensure that the proposed landscape treatment of the public open space, re-instatement of trees, and fencing is appropriate and sympathetic to the existing landscape, and to ensure the existing trees and proposed landscaping for the site is maintained into the future. (P9639 Condition 9)

An endorsed Comprehensive Landscape Management Plan would have thereby precluded any new buildings on the island site between Main Drive and Oak Walk in accord with Permit P9639

However, such a Plan could have reasonably provided for the re-instatement of the original Main Drive Gateway at the entrance from Princess Street, as envisaged in the Kew Cottages Coalition Nomination (2004).

Moved to Victoria Park, Kew circa 1940, the Gateway is now being restored in situ. Our attempts to have the historic Gateway returned to Main Drive having fallen on deaf ears. We understand that neither the owner or the Appellant had any interest in restoring the Gateway to Main Drive. (See Appendix)

6. Location of the Proposed Apartment Building

The Appellant asserts that:

… there is simply no support for the proposition that

the development of a single apartment building, with a much smaller overall footprint and at

an overall height less than contemplated in the Site Concept Plan, could be said to be more

detrimental to the significant cultural heritage values of both Kew Cottages and Willsmere

merely by reason of it being located adjacent to the realigned access road which did not

exist at the time of operation of Willsmere and the Kew Cottages. [29 emphasis added]

However, in our submission the Appellant’s assertion that Main Drive is a

... realigned access road which did not exist at the time of operation of Willsmere and the Kew Cottages.

is simply wrong.

This is a significant error and should be corrected in accordance with the Kew Cottages Statement of Significance (F4 Main Drive).

Similarly, the Appellant appears more than somewhat confused regarding the significance of Main Drive when they assert that the Heritage Victoria officer is “misdirected” in his statements regarding Main Drive access to the Kew Asylum [31]

Suffice here to say that we support the officer’s comments, and submit that the Appellant’s assertions have no substance. [31,32]

7. Material and Expert Evidence.

We have the highest respect for the professional competence of the experts referred to by the Appellant.

However, the suggestion by the Appellant that John Patrick and Bryce Rayworth have had no previous involvement in the application appears disingenuous to a degree.

As the Appellant will be aware, both consultants were engaged by their Kew Cottages PPP partner, i.e.: the owner, the State Government, over a decade ago when the Planning Minister ‘called in’ the project and removed planning responsibility from Boroondara Council.

That in turn then meant that the Government became the owner, the developer, and the regulator of the Kew Cottages re-development.

Which as a former Mayor of Boroondara, Mr. Jack Wegman, said at the time was like, “putting Dracula in charge of the Blood Bank !”

We, therefore, include here for completeness the original Kew Cottages reports prepared by John Patrick and Bryce Rayworth for the Government

. (See attached)

Both reports refer to Main Drive and its significance with respect to re-development.

8. Conclusion.

On the one hand the Appellant appears to have made a number of unhelpful and mischievous assertions with regard to the competence of Heritage Victoria’s Permit Application assessment process.

However, on the other hand the Appellant now appears keen to cultivate and promote a degree of ignorance about not only how Permit P9639 came into existence, but also of the chaotic circumstances which surrounded the redevelopment at the time.

For example the Appellant appears to have conveniently forgotten that they supported the owner’s argument made to Heritage Victoria at the time that to re-develop the site it was necessary for financial reasons to not only:

  1. Demolish 50% of the Heritage Buildings; but also
  2. Build apartment blocks at, and only at, the specific locations shown on the ‘Site Concept Plan’ (Masterplan) prepared by the Appellant.

Similarly, when by way of objection, the Kew Cottages Coalition submitted alternative proposals for the location of the proposed apartment blocks, both the Government and Walker Corporation were adamant that the proposed apartment blocks could not be moved from the specific locations shown on the Site Concept Plan that they themselves had prepared.

The Government and Appellant themselves, therefore, were the ones responsible for the island site on Main Drive being excluded from the specific locations proposed by them for apartments in the Site Concept Plan.

The Government, as owner, was successful in its permit application, and the Site Concept Plan was endorsed as part of Permit P9639.

The Government, as owner of the Heritage Assets was thereby given permission to demolish 50% of the remaining Heritage Buildings, but only on the specified terms and conditions as discussed in our submission.

We have concluded that the Government subsequently not only failed to abide by the terms and conditions set out in Permit P939, but has also:

  1. Allowed the remaining Heritage Buildings to fall into disrepair; and
  2. Failed to maintain that part of the Main Drive and Oak Walk Avenues occupied by the Appellant’s administration office, to the extent that the conservation of this island site is now seriously threatened. (See Attached images plus Google Streetview https://goo.gl/maps/uGpzJGeczCy )

We respectfully submit, therefore , that the Heritage Council should:

  1. Reject the current Appeal; and
  2. Take action pursuant to S.66 of The Act to ensure this ‘island site’ is returned to its former appearance in accordance with Permit P9639 without further delay.

==

APPENDIX

Links to:

Attachments 1 -10

Please see Email 2 of 2.

 

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“Walker’s Wooden Horse Appeal” – Kew Cottages Coalition Submission to Heritage Council, Nov 2015. ( Email 1 of 2.)

To: Rhonda McLaren, Hearings Coordinator, Heritage Council Victoria.
Re: Permit Appeal Kew Cottages (H2073)
From: Brian Walsh, President, Kew Cottages Coalition

Date: 9 Nov 2015

Walker’s Wooden Horse Appeal.
A Submission to the Heritage Council of Victoria
Kew Cottages Coalition
Nov 2015

1. Introduction

The Kew Cottages Coalition supports the Executive Director’s decision to refuse Walker Corporation’s Heritage Permit Application P22396.

This submission is in addition to, and is to be read in conjunction with our earlier submissions on this matter, including:

  1. “Objection to Heritage Permit Application P22396 ( To:Heritage Victoria Feb 2015)
  2. “Beware Developers Bearing Gifts” (To: Heritage Council Aug 2015)
  3. “Objection to Amended Plans” (To: Heritage Council Oct 2015)
  4. “Application for Directions” (To: Heritage Council Oct 2015)

Copies of the above documents, and other supporting material are available online via our website www.kew.org.au (See Links below).

2. Matters for Consideration (Sect 73)

2.1 VCAT Planning Decision (Sep 2015)

This submission is made following the planning decision by VCAT in September 2015 to direct the Minister for Planning to amend the Walker Development Plan- Kew (2006), and to give planning permission for Walker’s proposed Stage 8 apartment blocks.

The question now arises as to whether the VCAT Planning decision should be a matter for consideration by the Heritage Council in this Appeal, and if so what weight, if any should be given to that Planning decision.

For example, the suggestion has been made that VCAT’s Planning decision will give the Heritage Council grounds to accept Walker’s Heritage Permit Appeal, by in turn now amending the Kew Cottages Heritage Site Concept plan, that was endorsed as part of Heritage Permit 9639 in Sep 2005.

However, in our respectful submission the VCAT Planning decision is with regard to s73(1A)(b) of the Act simply not a “relevant matter” for consideration, and thereby not relevant to Walker’s Appeal to the Heritage Council because:

  1. State Planning approvals and State Heritage approvals are subject to two separate and distinct Acts of Parliament;
  2. The Kew Cottages Heritage Permit 9639 Site Concept Plan, and Conditions (2005), predate the Walker Development Plan – Kew (2006), and are in no way varied by VCAT, nor subject to amendment in this Heritage Permit Appeal.
  3. The Executive Director’s decision (5/15) to refuse Walker’s Stage 8 Heritage Permit Application predates the VCAT Planning decision (9/15) to vary the Walker Development Plan – Kew.

However, if we are wrong, and the Heritage Council chooses to consider the VCAT Planning decision, then we say that when the primary matters to be considered pursuant to s.73(1)(a) , s.73(1)(c), s.73(1)(f), and S73(1A) of the Act are taken to account, including the significant impact of the proposal on the cultural heritage significance of both of the two adjacent Registered Places (Kew Cottages, and Willsmere), then the recent VCAT Planning decision will be found to be of little assistance, and it will be clear that from a heritage perspective a very different outcome is required.

2.2 Main Drive Avenue of Trees Buffer Zone

We believe that the primary matters to be considered, for example, should include the nature and extent of an appropriate buffer zone each side of the Main Drive and Oak Walk Avenues of Trees, as set out in our original nomination, and as evident in:

  • The Urban Design Framework ( Built Form at Edge Condition, Yarra Bend Connection, p.13, Oct 2003)
  • The Statements of Significance (2004);
  • Heritage Permit P9639 and Endorsed Plans (2005);
  • The Executive Director’s Refusal to grant a permit for the construction of a five storey apartment building on land bounded by Main Drive and Oak Walk (2015);

2.3 History of Registration

The Kew Cottages Coalition nominated the Double Avenue of Trees on Main Drive for State Heritage listing in January 2004. (Copy attached)

We said that:

2.3.1 Extent of Nomination (2004)

The land shall include a buffer zone each side of Main Drive extending from Princess Street to the intersection with Boundary Road in the west, at the south-eastern corner of the Willsmere development. The northern boundary of the buffer zone shall be ten metres north of the centre-line of the outer northern row of trees. The southern boundary of the buffer zone shall be formed by the rear of properties facing Wills Street, or ten metres from the centre-line of the southern row of trees.

Similarly, shortly, thereafter, Ms. Louise Godwin, Executive Director, Kew Cottages Parents Association nominated all six of the original Cottages that still remained on the site for State Heritage listing.

In August 2004 Mr. Ray Tonkin, Executive Director, Heritage Victoria subsequently recommended to the Heritage Council that Kew Cottages and all of the grounds should be registered

At its meeting of 15 November 2004 the Registration Committee of the Heritage Council resolved to include the Former Kew Cottages (Kew Residential Services) in the Victorian Heritage Register under S.42(1)(b) of the Heritage Act. The Committee determined that all of the land and the specific buildings and landscape features (including trees) in the Executive Director’s registration should be included in the Victorian Heritage Register.

2.4 Owner has allowed Heritage Fabric to Fall into Disrepair. (S.160)

It is significant, therefore, to note that now almost 11 years to the day after that historic Heritage Council decision, it is precisely those particular Kew Cottages landscape features and buildings first nominated, that appear to be now the most at risk from the combined threats posed by the owner’s neglect and the appellant’s commercial activities i.e.:

  1. The Main Drive Avenue of Trees and buffer zone that the Kew Cottages Coalition nominated are now seriously threatened by Walker’s proposal, and
  2. The Heritage listed buildings that still remain (now sadly reduced from 6 to 3) have been allowed to fall into disrepair as a result of the owner’s long standing and what appears to be carefully cultivated neglect.

2.5 Owner has breached Government Heritage Policy.

We believe that owner’s long standing practice of supporting Walker’s commercial interests at the expense of Government Heritage conservation is a relevant matter for the Heritage Council in terms of S.73(1)(f) because the owner’s neglect of Kew Cottages Government heritage conservation to date appears to have been actively compounded by a strategy of:

  1. Failing to monitor compliance with permit conditions; (2005-2015)
  2. Seeking inappropriate and informal approvals designed to help reduce heritage conservation in favour of commercial gain; (See: Ombudsman’s Report 2010) )
  3. Amending contractual arrangements in order to help minimise the developer’s heritage conservation responsibilities; (See Fourth Deed of Variation, Walker KRS Contract, 2014)
  4. Amending contractual arrangements in order to effectively barter Government Heritage assets in exchange for developer’s commercial risk; (2014)
  5. Making a contractual undertaking to the developer to endeavour to obtain the return to the State of the $800,000 Heritage Guarantee from Heritage Victoria. (2014)

These practices might perhaps be more understandable if they were open and transparent, and undertaken in accordance with the Victorian Government Cultural Heritage Asset Management Principles adopted by the Heritage Council at its meeting on 6 September 2007.

However, that is clearly not the case at Kew Cottages.

In our submission there has been a long standing absence of transparency in terms of both the informal advice, and compliance exemptions sought on behalf of the owner from Government regulatory agencies, as well as serious criticism from the Auditor General regarding the management practices of Major Projects Victoria (2012 and 2015),

As a consequence many significant trees have been damaged or destroyed since the re-development commenced, and the Ombudsman has reported to Parliament that Heritage Victoria is inadequately funded to monitor compliance with permit conditions at Kew Cottages. In his Report he said:

A considerable amount of time was expended by Heritage Victoria officers in handling the compliance issues following the issue of permits at the Kew site. It is clear that this role has been a reactive one, responding to residents’ concerns about actions undertaken by the developer. Indeed, had the residents not reported issues, it appears quite possible that further damage could have occurred to heritage listed trees. The Executive Director, Heritage Victoria acknowledged this and stated that he is not resourced to proactively inspect and monitor compliance with heritage permits. (p.76 2010)

2.6 Conservation Risk Management (S.73(1)(f))

The risk, therefore, to the long term conservation of the land between Main Drive and Oak Walk, and indeed the heritage fabric of the site overall appears to be unacceptably high,

We understand that the Heritage Act requires owners to maintain registered places to the extent that their conservation is not threatened.

However, in the case of not only the land between Main Drive and Oak Walk, but also the three remaining listed Cottages (B1, B3, and B5), Major Projects Victoria has we submit failed to comply with the Act.

Firstly, in the case of the three remaining Cottages MPV appears to have simply put up a fence, and left the heritage buildings to fall into disrepair for over a decade.

Secondly, in the case of the land between Main Drive and Oak Walk, MPV have allowed the developer to ‘squat’ in a building which would have been demolished years ago if MPV had complied with Government Heritage policy, and

‘set the standard for the community in the management of heritage assets… ” (Vic Gov 3. Lead by example 2009)

Thirdly, MPV have compounded their latter failure, by actively supporting Walker’s proposal, instead of conserving the landscape’s heritage significance “to the greatest extent feasible”, in accordance with both they Victorian Government Heritage policy on asset Management. (5. Conservation Outcomes, 2009), and the endorsed ‘Site Concept Plan’ (2005)

We understand that the redevelopment is scheduled to finish within a year (Oct 2016), and there is still no resolution to these long standing problems in sight.

We submit, therefore, that the Heritage Council should lead by example, and take adequate and comprehensive steps to help reduce the current high level of conservation risk to an acceptable level. We recommend as follows:

  1. Kew Cottages should be treated as a high risk Government Heritage site, for as long as it continues to be owned by Major Projects Victoria, and/or developed by Walker Corporation;
  2. The nature and extent of that risk should be a matter for consideration by the Heritage Council in determining this Appeal;
  3. The Appeal should be rejected; and
  4. Following a site inspection by the Heritage Council;
  • A written notice should be served on the owner, Major Projects Victoria, requiring that they show cause why an order should not be made obliging the owner to carry out specified conservation works to the listed buildings B1, B3, and B6, and to all of the land between Main Drive and Oak Walk.
  • The specified works shall include but not be limited to demolition of the former administration building located on that part of the land bounded by Main Drive and Oak walk as prescribed in Permit 22396 with conditions (Sep 2015. HC27)

Reason: So that the heritage buildings, landscape, plantings, avenues, concrete lamp posts, and the following features as marked on Diagram 2073 are properly conserved without further delay.

  • F1-3 Residents’ Memorials and Sculpture
  • F4 Main Drive
  • F5 Boundary Drive
  • F7 Oak Walk

2.7 Plans Provided

2.7.1 No available land
It appears clear from the plans received that there is insufficient space available to accommodate any new building on the site once the former administration office has been demolished, and the double Avenues of trees along Main Drive and Oak Walk have been properly reinstated in accordance with the Site Concept Plan, including the recommended buffer zone as set out in our original nomination. (Copy attached.)

2.7.2 Request for Schedule of Amended Plans.
For the sake of clarity, however, we request that a schedule of the amended plans accepted by the Heritage Council be distributed to all parties, because it appears at the time of writing (9/11) that some parties may not have received all of the amended plans.

We submit that consideration of plans currently provided by the appellant must take account of past problems experienced with the provision of plans by the owner , as well as current errors and omissions.

2.7.3 Significant Errors
For example it appears that the owner has a history of providing Kew Cottages plans that are either inaccurate, or incomplete, and/or out of date, or otherwise misleading and deceptive

We note that errors found in the past that posed a potentially detrimental heritage impact included:

  1. The plan submitted by the owner to Heritage Victoria showing relative heights of proposed five storey apartment blocks and Willsmere (Corrected by Owner 2005)
  2. The plan used by the developer’s earth moving contractor that resulted in significant root damage to 300 year old heritage listed River Red Gums (Appellant prosecuted for breach of Heritage Act 2007).
  3. The Kew Main Drive Construction Staging Plan Rev ‘C’ (2012) that was published in such a manner that it failed to show the land located between Main Drive and Oak Walk. i.e.: the subject site of the current Walker Stage 8 proposal. (Uncorrected)

2.7.4 Significant Omissions

A.”Site Concept Plan” ( Permit P9639 )

The appellant has failed to provided a copy of the endorsed Heritage ‘Site Concept Plan’ as incorporated in Permit P9639 (2005).

Preferring instead, it appears, to :

1) Claim, somewhat ambiguously, that:

The Site Context Plan endorsed under Heritage Victoria Permit number P9639 does not reflect the ‘as built” context of the Heritage Place, which has resulted from subsequent approved development of the Heritage Place. (HC28),

and to

2) Rely on their own ‘Planning Permit Drawings’ (2014) (HC06), plus ‘Plan of Existing Conditions” ( Dwg 3332-51-01, 26.11.14), as amended by their Alternative Plan retaining Tree No 157, (dated 13 July 2015, and lodged 2 October 2015)

This is a significant omission because:

1. It goes to the very basis of the Executive’s Director’s refusal to grant a permit i.e.:

“The proposed residential apartment building is shown located on land set aside in the Site Context Plan endorsed as part of permit P9639 as public open space with all trees retained…” (HC26); and

2. None of the alternative plans provided by the appellant show otherwise.

B. Comprehensive Landscape Management Plan (P9639 Condition 9)

The appellant has failed to provided a copy of the comprehensive Landscape Management Plan) that the owner was required:

“.. to prepare and submit for the approval of the Executive Director before re-development on the site commences..” (P9639 Condition 9 – emphasis added)

This is a significant omission because our understanding is that the owner failed to prepare and submit a comprehensive Landscape Management Plan, failed to Comply with Condition 9, and notwithstanding this serious breach, commenced re-development works on the site anyway.

Moreover, we understand from Heritage Victoria, that there is no record of a comprehensive Landscape Management Plan, that includes the land between Main Drive and Oak Walk, as required by Condition 9, ever being submitted for approval.

2.7.5 Potential Breach of S.160 of the Act by the Owner. (Conservation threatened)

It would appear, therefore, in our respectful submission, that at face value a serious breach of S.74A of the Act occurred at the commencement of the re-development works, and should be properly investigated in order that the Heritage Council is fully informed.

2.8 Effect Refusal would have on reasonable or economic use of the place (S.73(1)(b))

In addition to our earlier submission on this matter we submit that any consideration in terms of S.73(1)(b) must take account of the Kew Residential Services Development Agreement which sets out the contractual relationship, including inter alia the financial arrangements between the developer and the owner regarding the proposed Stage 8 development on the land between Main Drive and Oak Walk.

In particular we refer to the extraordinary Fourth Deed of Variation to this Agreement (Dated 18-6-2014 – copy attached) which makes substantial references to changes regarding

a) “Redevelopment of Project Office Precinct” , which is defined as:

“that part of the site used by the Developer as a project office for the Project and which comprises Stage 8 on the Staging Plan (Clause C14 p5 ) , (i.e.: the land between Main Drive and Oak Walk); and

b) Heritage Buildings (Clause B15 is deleted and replaced with a new clause. p8 )

In our submission:

  1. It appears clear from the Agreement that potential refusal of “Planning Permits and other Authorisations” has been taken to account, and is a risk to be born by, and agreed to as an acceptable commercial risk by the developer (C.14 (e) ),. As a consequence we submit that the Executive Director’s refusal is both reasonable and appropriate.
  2. However, it also appears clear that in exchange Major Projects Victoria (On behalf of the ‘State’) as the owner has agreed to not only delete the Developer’s obligation to restore the Kew Cottages Community facilities and Heritage buildings, but also to

“use its reasonable endeavours to:

  1. Assist the Developer to obtain all relevant Planning Permits and other Authorisations which are necessary or desirable to facilitate the Additional Sale Lots in the Project Office Precinct. (C14(c)) and
  2. Obtain the return to the State of the Heritage Guarantee from heritage Victoria..(B.15.9)

In our submission such an agreement by the owner constitutes a severe and on going threat to the conservation of not only the heritage landscape between Main Drive and Oak Walk, but also to the remaining Heritage Cottages, which it appears are now to effectively remain ‘mothballed’ in the same state of disrepair that they had already fallen into at the time of this Agreement in June 2014, after more than a decade of neglect by the owner.

We respectfully submit, therefore, that the Executive Director, Major Projects Victoria, and the Secretary of the Department of Economic Development, Jobs, Transport and Resources, be requested to give evidence in this Appeal Hearing and to show cause why an order should not be made obliging the owner to carry out specified conservation works to the listed buildings B1, B3, and B6, and to all of the land between F4,F5,and F7 (i.e.: between Main Drive and Oak Walk).

  • The specified works shall include but not be limited to demolition of the former administration building located on that part of the land bounded by Main Drive and Oak walk as prescribed in Permit 22396 with conditions (Sep 2015. HC27) and
  • The reinstatement of the Main Drive and Oak Walk Avenues of Trees in accordance the the endorsed Government Heritage ‘Site Context Plan” (The Masterplan, Permit P9639, 2005)

2.9 Other Matters – Views of Willsmere and Main Drive.

In addition to our earlier submissions on Views of Willsmere and Main Drive, we note and support Heritage Victoria Officer’s Report, including the Officer’s comments on the photomontage images provided by the appellant (HC25 p.15)

We only add that we think it both somewhat imprudent and disrespectful for the appellant in response for a request for distant views of one of Melbourne’s most prominent and distinctive landmarks to have provided a series of photographs which, accepting the cover image, instead appear to show predominantly large areas of carpark, playing fields, roadway, roadsigns, and railway track, but very little of Willsmere. (HC24)

We are confident that Members of the Council will already be quite familiar with the the landmark qualities of Willsmere, and able to make their own assessment at first hand from vantage points of their choice.

We will make further views of Willsmere, Main Drive, Oak Walk, and the Heritage Buildings publicly available for consideration on our website, should they be required by any of the parties to the Hearing.

However, as our own Nomination for the Main Drive Avenues of Trees, the Endorsed Government Heritage ‘Site Context Plan, and the Urban Design Framework for the site are all in agreement that there will be insufficient space for new buildings of any height to be constructed between Main Drive and Oak Walk, once the heritage fabric has been adequately and comprehensively restored in accordance with the Act, then the Appeal should be rejected on those grounds alone.

3. Summary Conclusions.

1. The Executive Director’s Refusal should be affirmed without qualification.

2. The VCAT Planning Decision (Sep 2015) is not relevant to this Heritage Appeal.

3. The Endorsed Government Heritage Site Concept Plan (Attachment 4 P9639), which shows no buildings on the land between Main Drive and Oak Walk, is in accord with both:

  • The Kew Cottages Coalition original nomination (Jan 2004) which nominated a buffer zone with a northern boundary set 10m north of the centre line of the Avenues northern trees; and with
  • The Urban Design Framework . which shows no buildings between Main Drive and Oak Walk. (p.13 UDF Oct 2003)

4. Our reading of the amended plans, avenue locations and dimensions provided by the appellant indicates that there will be insufficient space to accommodate any new building or sale lots on the site once the former Administration Building is demolished, and the avenues of trees on Main Drive and Oak Walk are properly reinstated, in accordance with the Endorsed Government Heritage Site Concept Plan, including the 10m buffer zones for the avenues of trees as set out in the Kew Cottages Coalition Nomination (2004)

5. Potential Breach of S.160 of the Act by the Owner. (Conservation threatened)

The owner allowed the Heritage Core Buildings to fall into disrepair, and failed to maintain the land between Main Drive and Oak Walk to the extent that its conservation is threatened.

6. Potential Breach of S.74A of the Act by the Owner. (Non compliance with Permit P9639 Condition 9)

The owner appears to have commenced the redevelopment and undertaken significant works without first submitting a Comprehensive Landscape Management Plan for approval as required by Condition 9 of Permit 9639.

4. Summary Recommendations.

We submit that the Heritage Council should lead by example, and take adequate and comprehensive steps to:

  • Have the above potential breaches of the Act fully investigated;
  • Reduce the current unacceptably high level of conservation risk at Kew Cottages, and
  • Restore the core heritage fabric that has been neglected, damaged or fallen into disrepair.

We recommend as follows:

  1. Kew Cottages should be treated as a high risk Government Heritage site, for as long as it continues to be owned by Major Projects Victoria, and/or developed by Walker Corporation;
  2. The nature and extent of that risk should be a matter for consideration by the Heritage Council in determining this Appeal;
  3. In order to fully inform the Council on the this matter, the Director, Property and Development Group, Major Projects Victoria, and the Secretary of the Department of Economic Development, Jobs, Transport and Resources, should be requested to give evidence in this Appeal Hearing and to show cause why an order should not be made obliging the owner to carry out specified conservation works to the listed buildings B1, B3, and B6, and to all of the land between F4,F5,and F7 (i.e.: between Main Drive and Oak Walk)
  4. The Permit Appeal should be rejected; and
  5. Following a site inspection by the Heritage Council, and evidence by MPV, and the Secretary of the Department;
  • The definition of the ‘Heritage Core’ shall be extended to include all of the open space surrounding B1,B3, and B6, together with all the open space between F4, F5, and F7;
  • A written notice should be served on the owner, Major Projects Victoria, requiring that they show cause why an order should not be made obliging the owner to carry out specified conservation works to the listed buildings B1, B3, and B6, and to all of the land between F4,F5,and F7 (i.e.: between Main Drive and Oak Walk).
  • The specified works shall include but not be limited to demolition of the former administration building located on that part of the land bounded by Main Drive and Oak walk as prescribed in Permit 22396 with conditions (Sep 2015. HC27) and
  • The reinstatement of the Main Drive and Oak Walk Avenues of Trees in accordance the the endorsed Government Heritage ‘Site Context Plan” (The Masterplan, Permit P9639, 2005)

Reason: So that the heritage buildings, landscape, plantings, avenues, concrete lamp posts, and the following features as marked on Diagram 2073 are properly conserved without further delay.

  • F1-3 Residents’ Memorials and Sculpture
  • F4 Main Drive
  • F5 Boundary Drive
  • F7 Oak Walk

5. Links

Kew Cottages Coalition
www.kew.org.au

  1. “Objection to Heritage Permit Application P22396 ( To:Heritage Victoria Feb 2015)
  2. “Beware Developers Bearing Gifts” (To: Heritage Council Aug 2015)
  3. “Objection to Amended Plans” (To: Heritage Council Oct 2015)
  4. “Application for Directions” (To: Heritage Council Oct 2015)
  5. Kew Cottages Coalition Heritage Nomination (2004)
  6. Victorian Government Cultural Heritage Asset Management Principles (2009)
  7. Ombudsman’s Investigation into the Probity of the Kew Cottages Development (2010)
  8. Fourth Deed of Variation, Walker KRS Development Agreement ( 2014)

End Note:
Submission: Email 1 of 2.:

Appendices:.. See: Email 2 of 2

Online Version: Click here for full Documents Schedule and Appendices

**** Kew Cottages Coalition **** 9 Nov 2015

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